News & Publications

AIPLA echoes the significant concerns shared by many other intellectual property entities about the Administration’s decision to support the World Trade Organization (WTO)’s proposed waiver of IP protections for COVID-19 vaccines. AIPLA continues to support the widespread distribution of vaccines, medicines, and other measures necessary to meet the challenges of COVID-19, however, we are concerned that the waiver approach is unlikely to lead to the desired result of widespread access to high-quality vaccines produced by qualified manufacturers and will negatively impact further innovation. AIPLA believes this decision has the potential to set an unfortunate precedent going forward.

On April 26, 2021, AIPLA submitted comments to the U.S. Copyright Office on Notification of Inquiry regarding Copyright Alternative in Small-Claims Enforcement (“CASE”) Act Regulations. As a general matter, AIPLA believes that it is important to keep the procedures as straight forward and accessible as possible to ensure this will be a new, simple, and low-cost process to resolve small copyright claims. AIPLA encourages the Copyright Claims Board to publish standardized forms and instructions. Additionally, AIPLA is in favor of providing a Second Notice through the U.S. Postal Service. For ease of delivery, AIPLA is in favor of a Designated Agent directory. Online submission of opt-out notices should be encouraged, but a paper option is also recommended. To strike an appropriate balance of discovery, AIPLA recommends that the CCB require a standardized, initial disclosure of relevant information.

On April 5, 2021, the US Supreme Court overturned Oracle’s copyright win over Google, holding that Google’s use of Oracle’s programming code from the Java SE Application Programming Interface (API) in their Android platform was a fair use and did not violate copyright laws. The Court determined that Google’s use of only the code that was needed to allow programmers to work in a new and transformative program was a fair use of that material. Writing for a 6-2 majority, Justice Breyer declined to address the first question on copyrightability and instead resolved the case focusing on the question of fair use by referencing the four guiding factors in the Copyright Act’s fair use provision. Justice Thomas filed a dissenting opinion that the ruling bypasses the question of whether the software code is protected by the Copyright Act. AIPLA filed an amicus brief in this case on January 13, 2020.

On March 30, 2021, AIPLA, along with IPO, LES USA and Canada, and the NY IP Law Association, submitted a letter to the Office of the US Trade Representative to express support for the United States’ opposition to the TRIPS waiver proposal being discussed at the World Trade Organization (WTO). The letter points out that the TRIPS waiver proposal would waive a variety of IP rights related “to prevention, containment or treatment” of COVID-19. The proposal incorrectly portrays IP as a barrier, but it is expressed, to the contrary, that IP protection enhances developments. The letter states that there are no known examples where IP has been used to limit access to COVID-related technology ‒ rather innovator companies have partnered and shared IP to create tools to address the pandemic. Should the proposed TRIPS waiver be implemented, it is noted that it would have an immediate chilling effect on continued research and necessary collaboration.

On March 26, 2021, AIPLA submitted comments regarding the China National Intellectual Property Administration (CNIPA) Administrative Adjudication Measures for Early Resolution Mechanism for Drug Patent Disputes. In the comments, AIPLA requests clarification of handling of patent invalidity challenges, since substantial ambiguity remains. AIPLA requests an 8-month deadline to complete the adjudication in the Draft Measures, and requests extensions of notice periods and filing deadlines. AIPLA also requests that the Draft Measures include a corresponding provision providing that if a case has been accepted by either CNIPA or the People’s Court, any case subsequently filed in the other tribunal shall not be accepted on the same asserted claims. Finally, AIPLA requests that all possible appeals have been resolved or the time within which to appeal has expired without an appeal being filed.

As a community, we stand together in condemning the acts of violence against Asian Americans that have occurred over the past year. Recent events are an awful reminder that much work remains. We must unite to support each other, both personally and professionally, now more than ever. Let us ensure that AIPLA and the entire IP community are places where we listen to and value each other’s experiences and perspectives.

On March 22, 2021, AIPLA submitted comments to Senator Thom Tillis in response to the discussion draft of The Digital Copyright Act (“DCA”) of 2021. AIPLA’s comments largely mirror and reflect AIPLA’s positions expressed on prior occasions, with comments directed to the concepts addressed and not to any specific proposed language. AIPLA’s comments support the concept of advancing the DMCA towards a “notice-and-staydown” regime. AIPLA also advocates further study into the use of a standardized unique identifier that would more effectively identify content.

On March 22, 2021, AIPLA submitted comments regarding the notice of proposed rulemaking regarding disclaimer practice in patents and patent applications. AIPLA supports the Office’s proposed revisions to the rules and includes a suggestion to clarify the rules regarding disclaimers by parties to a joint research agreement.

AIPLA's amicus brief generally supports keeping the doctrine of assignor estoppel without supporting either party’s position, but allowing for certain exceptions consistent with the findings in Westinghouse Elec. & Mfg. Co. v. Formica Insulation Co., 266 U.S. 342, 348 (1924). The brief distinguishes assignor estoppel from the doctrine of licensee estoppel that was abolished in Lear, Inc. v. Adkins, 395 U.S. 653 (1969), and also outlines the profound risks and cloud of uncertainty around assigned patents that might occur should the Court abolish assignor estoppel.

On February 26th, AIPLA submitted recommendations on the Association’s intellectual property priorities to the Biden Administration. AIPLA advocates for top-caliber USPTO leadership, including a variety of relevant requirements for appointees. Support was also expressed for continued adequate funding for the USPTO examination process to ensure high-quality patents. AIPLA suggested a multitude of initiatives to strengthen trademark registration, including but not limited to reinforcing existing trademark-related COVID relief measures, prioritizing effective and fair implementation of the Trademark Modernization Act, and preventing abuse of the U.S. trademark system. In relation to IP rights abroad, AIPLA supports efforts in raising the minimum standard of IP protections abroad so that they appropriately protect the investments of U.S. innovators. AIPLA also looks forward to continuing to collaborate with the National Council for Expanding American Innovation (NCEAI) and the Administration to advance diversity and inclusion initiatives.